RULE 801. DEFINITIONS THAT APPLY TO THIS ARTICLE;
EXCLUSIONS FROM
HEARSAY

The following definitions apply under this Article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal
conduct of
a person, if it is intended by the person as an assertion.

(a) Statement. "Statement" means a person's oral assertion, written assertion, or
nonverbal
conduct, if the person intended it as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(b) Declarant. "Declarant" means the person who made the statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while
testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(c) Hearsay. "Hearsay" means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing;
and

(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.

(d) Statements which are not hearsay. A statement is not hearsay if:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is
not hearsay:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is
subject
to cross-examination concerning the statement, and the statement is (i) inconsistent with the
declarant's testimony but, if offered in a criminal proceeding, was given under oath and
subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,
or (ii) consistent with the declarant's testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive, or (iii) one
of identification of a person made after perceiving the person; or

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant's testimony and, if offered in a criminal
proceeding, was given under penalty of perjury at a trial, hearing, or other proceeding or in
a deposition;

(B) is consistent with the declarant's testimony and is offered to rebut an express or
implied charge that the declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.

(2) Admission by party-opponent. The statement is offered against a party and is (i)
the
party's own statement, in either an individual or a representative capacity, (ii) a statement of
which the party has manifested an adoption or belief in its truth, (iii) a statement by a person
authorized by the party to make a statement concerning the subject, (iv) a statement by the
party's agent or servant concerning a matter within the scope of the agency or employment,
made during the existence of the relationship, or (v) a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy.

(2) An Opposing Party's Statement. The statement is offered against an opposing party
and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the
subject;

(D) was made by the party's agent or employee on a matter within the scope of that
relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the
conspiracy.

The statement must be considered but does not by itself establish the declarant's
authority
under (C); the existence or scope of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).

The definition of hearsay contained in this rule is dependent, in part, upon the definition
of a statement contained in subdivision (a). In this regard, it should be noted that nonverbal
conduct, to be a statement, and thus hearsay, must be intended by the party to be an
assertion. Nonassertive conduct is not a statement and therefore not objectionable as hearsay.
Thus, pointing out a suspect in response to the question, "Who did it?" is assertive conduct
and, if it otherwise falls within the definition, hearsay. Conversely, the act of opening an
umbrella is not intended to be assertive, is not hearsay, and may be offered as substantive
evidence that rain was falling at a certain place and time.

Hearsay is defined in subdivision (c) as a statement made by a declarant, other than one
made at the trial or hearing offered to prove the truth of the matter asserted. This definition
is of two distinct parts. The first is that the statement is one not made at the trial in which it
is offered. The second is that the statement must be offered to prove the truth of its content,
i.e., the matter asserted in the statement. If offered for other purposes, e.g., to show that the
declarant in fact made a statement ­ any statement ­ and, thus, was conscious at a
particular
time, the statement is not objectionable as hearsay. See e.g., Chester v. Einarson, 76
N.D.
205, 34 N.W.2d 418 (1948). The reason for this requirement is that it is only when a
statement is offered to prove the truth of the matter asserted that there is a lack of the
safeguards used to insure credibility of the declarant. It is this lack of an oath and
cross-examination of the declarant that warrants the exclusion of evidence as hearsay.

It should be noted that subdivision (c) does not define as hearsay statements made
out of
the presence of a party against whom offered. The presence or absence of a party is not, nor
has it ever been, a criterion by which hearsay is defined. It should be discarded as a
"remarkably persistent bit of courthouse folklore." McCormick on Evidence, § 246 at
586 (2d ed. 1972).

Subdivision (d) exempts from the hearsay definition, and allows as substantive evidence,
two types of statements which are technically hearsay. The reason for the exemptions are
that the dangers normally attendant to receiving hearsay statements are at least partially
removed in the exempted situations. In subdivisionparagraph (d)(1),
the opportunity to
cross-examine the declarant is present. In subdivisionparagraph
(d)(2), the nature of the
adversary system strengthens the reliability of an admission by a
party-opponenta statement
by an opposing party.

SubdivisionParagraph (d)(1)(i) follows Rule
801, Uniform Rules of Evidence, allowing
prior inconsistent statements always to be used as substantive evidence in civil cases and,
if the prior statement was made under oath in criminal cases. This varies from Rule 801 of
the Federal Rules of Evidence, which requires that the prior statement be made under oath
in all cases. See the discussion of Rule 801, Federal Rules of Evidence, in State v. Igoe, 206
N.W.2d 291 (N.D. 1973).

Subdivision (d)(1)(iii)Subparagraph (d)(1)(C) was
added,[effective July 1, 1981], to
comply with the federal rule. This provision was omitted from the original promulgation of
the Federal Rules of Evidence but was added soon thereafter.

Subdivision (d)(2), for the reasons stated above, exempts from the hearsay
definition
admissions of a party-opponent. This comports, generally, with the philosophy expressed by
the North Dakota Supreme Court. See the discussion of the comparable federal rules in Starr
v. Morsette, 236 N.W.2d 183 (N.D. 1975).

Rule 801 was amended, effective March 1, 1990. The amendment is technical in nature and
no substantive change is intended.

Rule 801 was amended, effective March 1, 2014, in response to the December 1, 2011,
revision of the Federal Rules of Evidence. The language and organization of the rule were
changed to make the rule more easily understood and to make style and terminology
consistent throughout the rules. There is no intent to change any result in any ruling on
evidence admissibility.